M/S. Shri Kaderi Ambal Steel Ltd vs Cce & St, Coimbatore

(Arising out of Order-in-Appeal No. 263/2013 dated 17.12.2013, passed by the Commissioner of Central Excise (Appeals), Madurai).

M/s. Shri Kaderi Ambal Steel Ltd. : Appellant

Vs.

CCE & ST, Coimbatore : Respondent

Appearance

Shri M. Kannan, Adv., For the applicant

Shri L. Paneer Selvam, AC (AR) For the respondent

CORAM

Honble Shri R. PERIASAMI, Technical Member Honble Shri P.K. CHOUDHARY, Judicial Member

FINAL ORDER No. 40602 / 2015

Date of Hearing/Decision: 27.05.2015

Per: R. Periasami

The appellant filed miscellaneous application for modification of the stay order passed by this Tribunal vide Misc. Order No. 40238/2015 dated 05.02.2015, by which the appellant was directed to pre-deposit an amount of Rs. 10,00,000/- and to report compliance on 24.02.2015. The appellant submits that the issue relates to Annual Capacity Production (ACP) under compound levy scheme on re-rolling mills.

2. The Ld. Advocate submits that the present demand is in consequence of the Commissioners original adjudication Order OIO No. V/72/30/6/97-Tech dated 31.03.2006, which was before this Tribunal in appeal No. E/486/2006. He further submits that this Tribunal vide Final Order No. 40241-40263/2015 dated 24.02.2015 remanded batch of appeals to the adjudicating authority with the direction to redetermine ACP. Since the OIO dated 31.3.2006 was already set aside and remanded, he pleads for modification of the stay order an also pleads that the present appeal may also be remanded to the original authority as no demand exists. Accordingly, modification of the miscellaneous application is allowed and after waiving per-deposit ordered, the appeal itself is taken up for disposal.

3. Heard both sides and on perusal of the miscellaneous order dated 05.02.2015 we find that it has been clearly brought out that the present appeal is a consequential demand of the Commissioners order dated 31.03.2006 covered in main appeal No. E/486/2006. Since the Commissioners main order dated 31.03.2006 is set aside vide Final Order No. 40241-40263/2015 dated 24.02.2015 and remanded to the original authority the duty quantified by the adjudicating authority in the present appeal does not survive and requires to be remanded to the original authority. The relevant portion of the Tribunals order dated 24.02.2015 is reproduced as under:-

4. In view of law laid down in aforesaid Judgments and agreement of both sides to reduce the dispute expeditiously before concerned adjudicating authority, all the appeals listed in Sl.No.17 to 39 of the cause list (Mention) are remanded to adjudicating authority concerned with the following directions:-

(i) Ld. authority shall grant fair opportunity of hearing to appellants to argue on the facts and evidence borne by record and no fresh evidence shall be entertained.

(ii) The authority shall also follow the ratio laid down in the following judgments and the appellant shall have proper opportunity of hearing on the basis of the ratio laid down in these cases:-

(a) Triveni Alloys Ltd. Vs CESTAT Chennai 2014 (206) ELT 617 (Mad.)

(b) CCE Chandigarh Vs DOABA Steel Rolling Mills 2011 (269) ELT 298 (SC)

(iii) Wherever abatement is permissible, that shall be allowed by the authority concerned in accordance with law.

(iv) Since appellants have grievance of violation of natural justice, the authority shall do justice to afford reasonable opportunity of hearing to prevent repetitive litigation.

(v) Wherever determination of ACP arises, the authority with due regard to Rule 3 of Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 shall determine the same on the basis of materials on record and the appellants shall get proper opportunity of hearing to lead their defence in that regard.

(vi) Since it is mentioned in the Bar that Rule 5 of Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 is under challenge before Hon'ble High Court of Madras in the writ application as aforesaid, the authority shall be guided by judgement of the Hon'ble High Court if Judgment therein comes while doing readjudication. Otherwise his decision shall be subject to outcome thereof. In such event, the authority shall mention in his order that the readjudication order is subject to outcome of the writ application above.

5. We hope that appellants shall cooperate with the authority concerned without seeking any adjournment when the matters are fixed by them. Learned authorities shall hear the matter afresh and record the evidence properly to pass reasoned and speaking orders expeditiously.

6. With the aforesaid direction and conclusion all the appeals listed in Sl.No.17 to 39 are remanded to the learned adjudicating authorities concerned.

7. Ld. A.R for the Revenue submits that the issue arising out of Rule 3 has already been decided by the apex court in CCE Chandigarh Vs Doaba Steel Rolling Mills  2011 (269) ELT 298 (SC) but constitutional validity of Rule 5 was not before the apex court. At this stage, Members of the Bar submit that Revenue has filed memo before the Hon'ble High Court of Madras stating that writ application may be transmitted to the apex court. We are unable to express any opinion on such proposition in absence of any such memo before us.

8. In view of the decision above, all the Revenue appeals are also remanded for reconsideration by the authority in the light of the above direction.

In view of the above, the impugned order confirming the demand is set aside and the matter is remanded to the original authority with the direction to follow the directions ordered in Tribunals Final order dated 24.02.2015 and decide on merits after determining the ACP. It is directed that the present appeal shall be linked it with Appeal No. E/486/2006 during denovo adjudication. We also direct that the amount already paid by the appellant shall be taken into account in the denovo proceedings. The appeal is allowed by way of remand.

(Order dictated and pronounced in the open Court)

(P.K. CHOUDHARY) (R. PERIASAMI) JUDICIAL MEMBER TECHNICAL MEMBER

BB 1